The Assisted Decision-Making (Capacity) Act 2015 provides a modern statutory framework to support decision-making by adults with capacity difficulties. The Act was signed into law on 30 December 2015 but has not yet been fully commenced. The Act provides for the establishment of new administrative processes and support measures, including the setting up of the Decision Support Service within the Mental Health Commission (a body under the Department of Health).
The Decision Support Service is working towards being operational and ready for the commencement of the main provisions of the Act in 2020. This lead in time frame ensures that sufficient staff resources, processes, IT system, expert panels, codes of practice and regulations will be in place so that the Decision Support Service will have the capacity to be up and running effectively. There are many complex strands to this preparatory work, including the involvement of multiple organisations.
A high-level Steering Group comprised of senior officials from the Department of Justice and Equality, the Department of Health, the Mental Health Commission and the Courts Service, together with the Director of the Decision Support Service, is overseeing the establishment and commissioning of the Decision Support Service and this work is ongoing.
A number of provisions of the 2015 Act were commenced in October 2016 in order to progress the setting up of the Decision Support Service. The Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2016 (S.I. No. 515 of 2016) commenced provisions of the Act to enable the recruitment of the Director of the Decision Support Service. Ms Áine Flynn was appointed Director of the Decision Support Service on 2 October 2017.
The commencement of Part 8 of the Act, which provides a legislative framework for advance healthcare directives, is a matter for the Minister for Health. The Minister for Health, under the Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) (No. 2) Order 2016 (S.I. No. 517 of 2016), brought some provisions of Part 8 of the Act into operation on 17 October 2016. The commenced provisions provide for the establishment by the Minister for Health of a multi-disciplinary group to make recommendations to the Director of the Decision Support Service in relation to codes of practice on advance healthcare directives. In anticipation of the completion of that process, the Minister for Health commenced the remainder of section 91 on 17 December 2018 (S.I. No. 527 of 2018).
The key preparations are being put in place under the oversight of the Steering Group to allow for further commencement orders for the provisions of the 2015 Act to be made when the Decision Support Service is ready to roll out the new decision-making support options.
Significant progress has been made on preparing for commencement of the remainder of the 2015 Act. In April 2018, the Mental Health Commission engaged the consultancy firm BearingPoint to support the development of a detailed, costed plan to establish a fully operational Decision Support Service. The contract also includes ongoing project management support for the design and establishment of the organisation, business processes, IT systems and risk management framework.
The Mental Health Commission has also received sanction for the recruitment of a number of staff for the Decision Support Service and also a number of staff to provide shared services for the Mental Health Commission and Decision Support Service. These staff are being recruited on a phased basis by the Mental Health Commission.
The National Disability Authority is currently finalising its work on the suite of draft codes of practice in relation to non-healthcare matters which are required to be prepared under section 103 of the Assisted Decision-Making (Capacity) Act 2015.
In June 2018, my Department recruited an external legal expert to assist in the preparation of draft regulations in relation to decision-making assistance agreements, co-decision-making agreements, certain matters relating to decision-making representatives, and enduring powers of attorney. These regulation-making powers are provided for in sections 10(4), 31, 45(3), 45(4), 46(3) and 79 of the Assisted Decision-Making (Capacity) Act 2015. Work on the draft regulations is on-going.